Gilbert v. United States

Decision Date24 October 1966
Docket NumberNo. 19940.,19940.
PartiesJesse James GILBERT, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit



James F. Kirkham, San Francisco, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Kevin O'Connell, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, BROWNING, and DUNIWAY, Circuit Judges.

BROWNING, Circuit Judge:

Jesse James Gilbert appeals from his conviction of the armed robbery of four banks in violation of 18 U.S.C.A. § 2113 (a) and (d).


Appellant contends that objects taken from his person at the time of his arrest were erroneously admitted in evidence because the arrest was made without probable cause.

Two warrants for appellant's arrest for bank robbery were outstanding. The validity of these warrants is not questioned. Rather, appellant contends that at the moment of arrest the officers lacked probable cause to believe the person they arrested was appellant.

At the hearing on appellant's motion to suppress, the FBI agent who made the arrest testified as follows. On the night of February 26, 1964, he and three other agents were sent by their superior officer to the corner of Frankford and Levick streets in Philadelphia, Pennsylvania. They had been told that appellant might be in that vicinity. They had read a full description of appellant, and had examined his photograph. They had been told that appellant had been identified while purchasing a hair piece and would probably be wearing it, and that he would probably be wearing dark-rimmed glasses. They had known of the outstanding warrants. They had known that appellant was also charged with shooting and killing a policeman with a .45-caliber weapon, that he was armed with such a weapon, and that he was considered extremely dangerous.

Arriving at the designated corner, the agents observed a man in an outdoor phone booth, and approached to identify him. Because there was no light in the phone booth, the man — appellant"was taken hold of by the arm and pulled outside. Nothing — it was general sic. Not a violent gesture." As appellant emerged from the dark phone booth into the lighted street, the arresting agents saw that he wore a hair piece and darkrimmed glasses.

Appellant was asked to identify himself. He took his wallet from his rear pocket and showed the agents a driver's license, bearing a false name. The arresting agent took hold of appellant's left arm. Feeling something hard, he unzipped appellant's jacket, and from a "quick-draw" holster removed a loaded .45-caliber automatic with a shell in the chamber, ready to fire. A tattoo mark appellant was known to have was found on his left forearm. Appellant then admitted his identity.

The district court concluded there was probable cause to arrest appellant when the arresting agent saw appellant's hair piece and dark-rimmed glasses. Appellant does not seriously contest this conclusion.1 However, he contends that the arrest occurred earlier — either when the FBI agents blocked his exit from the phone booth, or when they physically removed him from it — and that at neither instant did the agents have probable cause to believe that he was the man named in the warrants.2

We think the actions of the agents, prior to the moment they acquired probable cause to arrest, were reasonable, and did not violate appellant's Fourth Amendment rights.

If the agents had simply accosted appellant and asked him to identify himself, no one could question the propriety of their conduct. Cf. Keiningham v. United States, 307 F.2d 632, 633 (D.C. Cir. 1962); Green v. United States, 259 F.2d 180, 181 (D.C. Cir. 1958); La Fave, Arrest 345 (1965). They did more than that. They laid hands upon appellant, and constrained his physical movements. The question is whether this physical restraint, supported by less than probable cause to believe the person affected was the one named in the warrant, violated the Fourth Amendment.

Relying primarily upon Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960), we have recently held that "there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations"; and that the test of the validity of such a brief detention is whether "from the totality of the circumstances" it appears that the detention was based upon "reasonable grounds" and "was not arbitrary or harassing." Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966). Supporting authority from this court includes Davis v. People of State of California, 341 F.2d 982, 986 (9th Cir. 1965); Lipton v. United States, 348 F.2d 591, 593 (9th Cir. 1965); Busby v. United States, 296 F.2d 328, 331 (9th Cir. 1961).3

Substantial considerations favor the recognition of a carefully limited right of brief police detention on less than probable cause to believe the person detained has committed a felony. If even slight interference with freedom of personal movement is invariably conditioned upon a showing of prior probable cause, then either the standard of probable cause will be lowered, and with it the protection against formal arrests and substantial interferences with liberty; or police activity which appears perfectly proper when measured against a standard of reasonableness will nonetheless be forbidden. American Law Institute, Model Code of Pre-Arraignment Procedure, Tent. Draft No. 1, Commentary 95-97 (1966); Bator & Vorenberg, 66 Colum.L.Rev. 62, 64-67 (1966); La Fave, Arrest 346 (1965); Note, 78 Harv.L.Rev. 473, 474-75 (1964); Barrett, 1960 Sup. Ct.Rev. 47, 65-66 (Kurland ed.); Leagre, 54 J.Crim.L. 393, 416-20 (1963).

On the other hand, it must be recognized that the potential for serious abuse of a police power to detain on less than probable cause is great, and the exercise of that power must be subjected to closest judicial scrutiny.

Moreover, any official exertion of custody over the person is a "seizure" within the meaning of the Fourth Amendment, and may be sustained only if not "unreasonable" under the circumstances. A.L.I. Model Code, supra, at 94-95; Bator & Vorenberg, supra, 66 Colum.L. Rev. at 65-66; Leagre, supra, 54 J.Crim. L. 396, 419-20. See also Schmerber v. State of California, 384 U.S. 757, 767-768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

The agents' conduct in the present case met the standard of reasonableness. Their duty, imposed by the warrant, was to find appellant and arrest him. They had substantial reason to believe he might be in the immediate vicinity. It was proper to identify anyone in the area who met appellant's general description. Appellant could not be seen clearly in the darkened phone booth. To give him notice, no matter how short, by asking him to step into the light might have imperiled life, for appellant had demonstrated his willingness to kill to avoid arrest, and he was known to be armed. His removal from the phone booth was accomplished with minimum force. The period of involuntary detention before probable cause was acquired was short — seconds at most. It was neither longer nor more oppressive than necessary to the discharge of the agents' duty to identify appellant and arrest him, and it was put to no other purpose.4


Appellant sought to exclude the testimony of various witnesses identifying him as a participant in the robbery of the respective banks, on the ground that these courtroom identifications were based in whole or in part upon (1) a prior examination by each witness of a photograph of appellant which was unlawfully seized during an illegal search of appellant's apartment; and (2) a prior viewing of appellant at an unlawful police lineup.

A. Seizure of the Photograph

The circumstances leading to the seizure of the photograph were as follows. At approximately 11:00 a. m. on January 3, 1964, two armed men robbed the Mutual Savings and Loan Association of Alhambra, California.5 A police officer was shot and killed. One of the robbers was wounded, but both escaped. Shortly thereafter the automobile which the robbers had driven from the bank was found abandoned about eight blocks away. The wounded robber was found in a second automobile nearby, and was taken to a hospital. A witness reported that two men had driven away from the scene in a third automobile. These facts were related to an FBI agent who arrived upon the scene about noon. He radioed the information to his office.

Another FBI agent was dispatched to the hospital to interview the wounded robber. The interview continued intermittently over several hours. The wounded man, Edgar Weaver, died at 9:00 p. m. that evening. Early in the interview, Weaver admitted his participation in the robbery, and said that a man named "Gilbert" was his accomplice. The agent telephoned this information to his office. Weaver then "came up with the name `Skinny Gilbert.'" The agent called his office with this additional information, and, in response, his office gave him appellant's name, "Jesse James Gilbert," and asked the agent to find out from Weaver if he was the one. Weaver confirmed this identification. He also reported, accurately, that appellant was then a prison escapee. Weaver also told the agent that he and appellant spent the previous night in apartment 28 of an apartment house with an "Hawaiiansounding" name located two blocks from the corner of Los Feliz Boulevard and Riverside Drive in Glendale, California. The agent immediately informed his office. It was then about 12:30 p. m.

The FBI office, by radio, dispatched another man, Agent Keil, to the indicated area with instructions to locate the apartment; and instructed two other agents, Agents Schlatter and Onsgard,...

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